# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted June 24, 2009

Decided June 25, 2009

Before

KENNETH F. RIPPLE, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 08

‐ 3253

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

JAIME SANDOVAL

‐ OCAMPO,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Eastern District of

Wisconsin.

No. 01

‐ CR

‐ 188

Charles N. Clevert, Jr.

Judge

.

O R D E R

Jaime Sandoval distributed large quantities of drugs in Milwaukee, Wisconsin, as

part of a drug

‐ trafficking ring, and when agents arrested Sandoval at his home, they found

a gun. He was charged with conspiring to distribute cocaine and marijuana, 21 U.S.C.

§§ 846, 841(a)(1), and with using a telephone to facilitate the distribution of drugs, id.

§ 843(b). Sandoval was released pending trial, but he absconded in February 2003 shortly

after the district court had denied his motions to suppress the evidence seized from his

apartment along with his post

‐ arrest statements. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 08

‐ 3253 Page 2

Sandoval remained a fugitive until he was finally caught in August 2007, and during

those years, he assumed a new identity and moved to three different states. Once back in

Wisconsin, Sandoval pleaded guilty to the conspiracy count and a new charge of failing to

appear in court, see 18 U.S.C. § 3146(a)(1). He was sentenced to a total of 97 months’

imprisonment.

Sandoval filed a notice of appeal, but his appointed lawyer now seeks to withdraw

under Anders v. California

, 386 U.S. 738 (1967), because he is unable to discern a nonfrivolous

issue to pursue. Counsel’s supporting brief is facially adequate, and Sandoval has filed a

response opposing counsel’s submission. See Cir. R. 51(b). We limit our review to the

potential issues identified in counsel’s brief and Sandoval’s response. See United States v.

Schuh

, 289 F.3d 968, 973

‐ 74 (7th Cir. 2002).

Counsel has evaluated whether Sandoval could challenge either the voluntariness of

his guilty pleas or the adverse ruling on his motions to suppress. But we need not discuss

the guilty pleas or the plea colloquy because Sandoval has made clear in his 51(b) response

that he wishes only to challenge his sentence and does not want his guilty pleas set aside.

See United States v. Knox

, 287 F.3d 667, 670

‐ 72 (7th Cir. 2002). And because those pleas were

unconditional, any appellate issue concerning the suppression ruling necessarily would be

frivolous. See United States v. Villegas

, 388 F.3d 317, 322 (7th Cir. 2004); United States v.

Elizalde

‐ Adame

, 262 F.3d 637, 639 (7th Cir. 2001). We thus limit our discussion to potential

challenges to Sandoval’s sentence.

In the plea agreement, the government promised to recommend a three

‐ level

downward adjustment for acceptance of responsibility. Nothing was said in the written

agreement about the possibility of an increase for obstruction of justice based on Sandoval’s

flight to avoid prosecution. Sandoval acknowledged, however, both in the written plea

agreement and again during the plea colloquy, that the parties’ understandings did not bind

either the probation officer, who would make her own recommendations, or the sentencing

judge, who would ultimately determine Sandoval’s imprisonment range and sentence. And

during the plea colloquy, Sandoval assured the district court that no one had promised him

a particular sentence and that he understood that the court and probation officer were not

parties to the plea agreement.

The probation officer determined that Sandoval was responsible for 652 grams of

cocaine and assigned a base offense level of 26. See U.S.S.G. § 2D1.1(c)(7). After adding two

levels for Sandoval’s possession of the gun found in his house, see id. § 2D1.1(b)(1), the

probation officer added two more levels for obstruction of justice, see id. § 3C1.1. And

because of the increase for obstruction, the probation officer refused to follow the

government’s recommendation that Sandoval be credited for acceptance of responsibility.No. 08

‐ 3253 Page 3

See id. § 3E1.1. This total offense level of 30, combined with a criminal history category of I,

yielded an imprisonment range of 97 to 121 months. Sandoval’s conviction for failure to

appear did not affect this range because the § 3146 violation was grouped with the drug

conspiracy, which carried the higher offense level. See id. §§ 2J1.6 cmt. nn. 2

‐ 3, 3C1.1 cmt.

n.8, 3D1.2.

At sentencing the district court accepted the probation officer’s recommendation that

Sandoval did not deserve a downward adjustment for acceptance of responsibility because

he had absconded for nearly four years, assumed a new identity, and moved to three

different states. The district court also adopted the probation officer’s other

recommendations and imposed a prison term of 97 months, the low end of the range. Had

the court granted a three

‐ level decrease for acceptance of responsibility and not added two

levels for obstruction of justice, Sandoval’s total offense level would have been 25 and his

imprisonment range 57 to 71 months.

Counsel considers challenging the upward adjustment for obstruction of justice. As

counsel recognizes, however, any argument about that adjustment would be frivolous

because Sandoval fled while on pretrial release, assumed a new identity, and evaded

authorities for four years. See id. § 3C1.1 cmt. n. 4(e); United States v. King

, 506 F.3d 532, 535

(7th Cir. 2007); United States v. Porter

, 145 F.3d 897, 903

‐ 04 (7th Cir. 1998).

Counsel also considers arguing that the district court committed clear error by

rejecting the government’s recommendation that Sandoval receive a reduction for

acceptance of responsibility. Our review of the court’s finding would be for clear error, see

United States v. Samuels

, 521 F.3d 804, 817 (7th Cir. 2008), and we agree with counsel that the

potential argument is frivolous. A district court is not required to accept the government’s

sentencing recommendations, United States v. Marty

, 450 F.3d 687, 691 (7th Cir. 2006), and,

indeed, we presume that an upward adjustment for obstructing justice precludes a

downward adjustment for accepting responsibility, see United States v. Krasinksi

, 545 F.3d

546, 554 (7th Cir. 2008); United States v. Partee

, 301 F.3d 576, 580

‐ 81 (7th Cir. 2002). The

district court was entitled to abide by that presumption because Sandoval evaded justice for

four years before pleading guilty.

Finally, in his Rule 51(b) response, Sandoval proposes to argue that the plea

agreement obligated the district court to impose a sentence within a range of 57 to 71

months. His argument, which presumes that the court’s findings as to acceptance of

responsibility and obstruction of justice are erroneous, would be frivolous. The plea

agreement does not promise Sandoval a sentence within a particular range; in fact, the

agreement does not even recommend a proposed range. As relevant here, the government

simply agreed to recommend a decrease for acceptance of responsibility, and that promiseNo. 08

‐ 3253 Page 4

was fulfilled. More importantly, as the district court reminded Sandoval during the plea

colloquy, the plea agreement did not bind the probation officer or the court. Thus, even if

the agreement had included a recommended range of imprisonment, the court would not

have been obligated to impose a sentence within that range. See Marty

, 450 F.3d at 691.

Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.